Pennsylvania Workers' Compensation Lawyer Blog

In a case that has been working its way through the Pennsylvania Workers’ Compensation system for some time now, the Supreme Court has accepted appeal in the matter of Diehl v. Workers’ Compensation Appeal Board (WCAB).

As was discussed in a previous blog entry, the Commonwealth Court of Pennsylvania concluded that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within 60 days of the expiration of 104 weeks of total disability. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

The Supreme Court of PA has accepted appeal to determine whether evidence of job availability or earning power is required to change disability status from total to partial as a result of an IRE.

As always, we will keep you informed on further developments in this important area.

In year’s past, before 1996, when a workers’ compensation insurance carrier wanted to reduce an injured worker’s benefits in PA, the insurance carrier had to refer the injured worker to jobs, which then had to be open and available to the injured worker. This process was set forth not by the Pennsylvania legislature, but by the Supreme Court of PA in Kachinski v. Workers’ Compensation Appeal Board, decided in 1981.

This process changed in 1996, when the PA legislature amended the Pennsylvania Workers’ Compensation Act. No longer does a workers’ comp insurance company have to actually refer an injured worker to a then-open job. Instead, the PA legislature opted for a system more like that used by the Social Security Administration in Social Security Disability cases. All that is required to be proven to modify workers’ compensation benefits is that suitable employment is generally available to the injured worker in the injured worker’s usual employment area.

This involves the use of “Labor Market Surveys (LMS),” also known as “Earning Power Assessments (EPA).” The injured worker is not referred to any specific job at all. The vocational expert retained by the workers’ comp insurance company just gathers data of jobs generally available in the geographic area of the injured worker. The premise is that if the injured worker wanted to look for work, these are the types of jobs the injured worker could find.

Recently, the Supreme Court of Pennsylvania addressed this issue again, in Riddle v. Workers’ Compensation Appeal Board (WCAB). More specifically, the Court addressed what geographic area must be used for the LMS or the EPA, if the injured worker resides out of the State of Pennsylvania.

In the Riddle case, the injured worker lived in West Virginia, but listed an Ohio address on his driver’s license. Mr. Riddle actually worked in Pittsburgh, which is where the injury took place. The vocational expert created a LMS/EPA focusing on where the injured worker was living, rather than where the injury took place. No jobs listed in the LMS/EPA were located in Pittsburgh.

The Workers Compensation Judge (WCJ) granted the workers’ comp insurance carrier’s Petition to Modify Benefits, based on the LMS/EPA. This was affirmed by both the WCAB and the Commonwealth Court of Pennsylvania. However, on appeal, the decision was reversed by the Supreme Court of PA.

Using the actual language of the Pennsylvania Workers’ Compensation Act, the Court found that if an injured worker resides out of PA, “the usual employment area where the injury occurred shall apply.” Since the injury occurred in Pittsburgh, Pennsylvania, the LMS/EPA, which focused on West Virginia, was insufficient, as a matter of law, to justify a modification of benefits. As such, the decision granting the Modification Petition was reversed.

When a worker is injured in Pennsylvania, he or she is generally entitled to workers’ compensation benefits when wages are lost due to the injury. Whether this loss in wages is actually due to the injury is a point often litigated. The issue can be particularly difficult when the injured worker is terminated from his or her job, allegedly for reasons unrelated to the work injury.

This issue comes up on occasion when an injured worker is receiving total disability benefits, and the workers’ compensation insurance carrier wants to reduce or stop those benefits. The continued receipt of total disability benefits may hinge on whether the injured worker was terminated for reasons unrelated to the work injury. The case law had suggested that if an injured employee is terminated after a work injury, for actions that took place before the work injury, the termination is considered related to the work injury.

The Commonwealth Court of Pennsylvania recently addressed this issue in Harvey v. Workers’ Compensation Appeal Board (WCAB). In that case, Ms. Harvey, a registered nurse, suffered a fracture in her neck, requiring a cervical fusion, in a work-related motor vehicle accident on July 4, 2001, and began to receive total disability benefits.

While investigating the accident, police allegedly discovered narcotic medications in Ms. Harvey’s car. When advised of the findings, the employer, Monongahela Valley Hospital located in Western Pennsylvania, investigated how Ms. Harvey had obtained the narcotics. The hospital concluded that Ms. Harvey had been signing out narcotic medications, but not delivering the drugs to patients. As a result of her violation of hospital policy, Ms. Harvey was terminated.

When Ms. Harvey was released to light duty work, the workers’ comp insurance carrier filed a Petition for Modification, to reduce the workers’ compensation benefits. The hospital presented testimony that jobs would be available within the physical restrictions of Ms. Harvey, but that she could not accept the jobs because she had been terminated for reasons unrelated to her work injury. Ms. Harvey contended that, since she was terminated after the injury for actions which took place before the work injury, the termination must be considered related to the work injury. As such, if the jobs were not being offered to her, then the employer was not able to demonstrate that work was actually “available” to her.

The Court found for the workers’ compensation insurance company, and granted the Petition for Modification. While the actions at issue took place before the work injury, the employer was not aware of the misconduct until after the work injury. A clear distinction was drawn by the Court when misconduct occurs before the work injury – if the employer knew of the misconduct before the injury, but elects to terminate the injured worker after the work injury, the termination is considered related to the injury. If, however, the employer did not know of the actions until after the work injury, as with Ms. Harvey’s case, then the termination is considered unrelated to the work injury.

While there is no limit to the period of time an injured worker in Pennsylvania can receive workers’ compensation benefits for total disability, the same is not true for partial disability. In PA, an injured worker can receive a maximum of 500 weeks of partial disability. After that time, even if a loss in earnings remains, as a result of the work injury, the workers’ comp insurance carrier is relieved of payment of the workers’ compensation benefits for partial disability.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Reutzel v. Workers’ Compensation Appeal Board (WCAB), addressing whether this 500 week period of partial disability benefits can be “stacked” if there is more than one injury.

In September, 1996, Ms. Reutzel injured her right shoulder at work. As a result of this injury, Claimant was limited to working reduced hours and began to lose wages. Workers’ compensation benefits for partial disability began. In May, 1997, Ms. Reutzel suffered another injury at work, this time to her lumbar spine. Again, she quickly went back to work, although she remained at the same restrictions as before. Partial disability benefits continued, as they had before the 1997 injury.

The 500 week period of partial disability benefits ended in June, 2006, and the workers’ comp insurance company stopped the payments. A Petition for Reinstatement was filed by Ms. Reutzel. According to Ms. Reutzel, she only used the 500 week period from the 1996 injury; she contended that she still had another 500 week period for the 1997 injury.

Unfortunately for Ms. Reutzel, the Court did not agree. Citing to the language of the Pennsylvania Workers’ Compensation Act, and later cases which interpreted the section of the Act at issue, the Court held that an injured worker in Pennsylvania only has a single 500-week period of partial disability with an injury, and that this period begins to run on the date total disability benefits are initially suspended. In other words, the start of the 500 week period for the 1997 injury was not delayed or stopped by the presence of the 500 week period for the 1996 injury. The Court noted that there was no change in the disability status as a result of this latter work injury. The 500 week periods of partial disability run concurrently, rather than consecutively, when there is more than a single work injury involved.

In PA workers’ compensation, there is no limit to how long an injured worker can receive total disability benefits. Once an injured worker receives total disability benefits for a period of 104 weeks, however, the workers’ comp insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE). Similar to an Independent Medical Examination (IME, more practically known as a Defense Medical Examination, DME), a physician conducting an IRE will examine the injured worker.

Based on that examination, the IRE physician will calculate the whole body impairment rating. The rating is to include only the effects of the work injury. If the whole body impairment rating is found to be less than 50%, then benefits are changed from total to partial (though the amount of benefits received should not change). We have discussed the IRE process in previous blog entries.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Johnson v. WCAB (Workers’ Compensation Appeal Board). This decision deals with what can be challenged in an impairment rating, once the status is changed from total to partial.

The Claimant in Johnson received a Notice of Change of Workers’ Compensation Disability Status when an IRE showed a 15% whole body impairment rating. She did not file an appeal to this Notice. About a year later, Claimant filed a Petition to Review alleging the IRE was faulty (because the IRE physician was not qualified to perform an IRE on her type of injury).

According to the Court, since Claimant failed to file an appeal of the Notice of Change of Workers’ Compensation Disability Status, Claimant could not challenge the validity of the IRE itself, and her Petition to Review should have been dismissed. Indeed, the Court found that a prerequisite to filing a Petition to Review in such a case is that the injured worker have a determination from a doctor that there is an impairment rating equal to, or greater than, 50 percent. In other words, all that an injured worker can challenge at that time is whether the total disability has recurred.

Once again, we are reminded of the permanent effects an injured worker in PA can suffer if time periods under the Pennsylvania Workers’ Compensation Act are not followed. Sometimes, as in this case, not even an experienced PA workers’ comp attorney can fix what has happened. It is for reasons such as this that we urge every injured worker in Pennsylvania to have the benefit of representation by a knowledgeable PA workers comp attorney.

Handling Pennsylvania workers’ compensation cases, we see a wide variety of work injuries. From problems with the neck and the back, to shoulders, elbows, knees, hands and everywhere in between. The one constant, though, is pain. Whether the injured worker has a herniated disc in the back, a broken arm, or a sprain or strain of a muscle, the injury usually involves pain.

To treat pain, and inflammation, in an acute work injury, doctors often prescribe non-steroidal anti-inflammatory drugs (or, NSAID for short). However, according to a recent article on The Medical News website, Transdel Pharmaceuticals, Inc. has a new approach which they say is safer and more effective for pain relief than standard NSAID medications.

Recent clinical testing has reportedly been successful for Ketotransdel, an alternative to standard NSAIDs (which are in the form of a pill that is swallowed). Ketotransdel has a transdermal delivery system (or, in other words, this medication is applied to the skin, not a pill to be swallowed).

According to lead clinical investigator Evan F. Ekman, M.D. and President of Southern Orthopaedic Sports Medicine and Medical Director of Palmetto Health Parkridge Surgery Center, Ketotransdel will provide effective pain relief without the risks of standard NSAID medications, “which are associated with gastrointestinal, cardiovascular and other medical problems."

Any advances in managing pain, even if only in the acute stage, is a benefit to the injured worker, not only in PA, but throughout our Country.